Mohammed El Zubaidy v Tanya Borg

Lord Justice Bean :

Mohammed Said Massoud El Zubaidy and Tanya Borg had three children, whom I will call A, B and C. A and C are girls, B is a boy. In 2015 the father took A and C to Libya. That was the last the mother saw of them. Since then the father, who returned to the United Kingdom with B, has flouted a series of orders of judges of the Family Division requiring him to bring about the return of his daughters to this jurisdiction. Prior to the order which is the subject of this appeal he had been sentenced on four occasions for a total of five years for contempt of court, though in each case he was released after serving half of the nominal sentence. On 16 December 2022 Sir Jonathan Cohen, sitting as a judge of the Family Division, imposed a further term of 12 months imprisonment. This is the father’s appeal against that sentence.

Chronology

The father was born in Libya, the mother in Malta. They married in Malta in June 2000. A (who was declared a vulnerable adult by Mostyn J in 2018) is now 22; C is 11. B is 17: his 18 th birthday will be in June of this year..

In February 2015, the mother agreed to the father travelling with all three children to Tunisia, to see their paternal grandmother. The father took them instead to Libya and refused to return them.

In October 2016, the father returned to England with B who has been here since then. A and C remain in Libya, so far as we know.

On 26 January 2017, following a hearing in the High Court, the children were made wards of court. The Court made tipstaff passport orders and a return order.

iv) On 30 November 2021, Poole J sentenced the father to a further 12 months imprisonment for failing to execute a notarised consent and failing to use his best endeavours to procure the children’s return: [2021] EWHC 3227 (Fam) .

Meanwhile, the mother went to Libya in March 2019 to attempt to secure the return of A and C herself. She brought proceedings against the paternal grandmother who was holding the children at that time. On or about 7 May 2019, Almadiana District Court in Libya made a custody order in favour of the mother. However, the paternal grandmother failed to produce the children and has since been uncontactable, the children’s whereabouts now being unknown.

b. [A] born 28 February 2000

These orders were served on the father by email on 13 and 14 September 2022. The mother’s solicitors informed the father that they would invite the court to commit him to prison for contempt if he did not